With Ma On Stand, Lawyers Can Mine The Mother Lode

A hostile lawyer, armed with a subpoena and a broad mandate, has your mother on the stand and is prying loose the confidences and other personal experiences you have shared.

"Well, there was that time when he was 13 and. . . ."

No!

". . . so then she started crying and said. . . ."

Guilty! To anything you want! To Nicole and Ron, the Kennedys, Vince Foster. Nolo contendere. Just make her stop.

It seems wrong, doesn't it? Your confession to a clergyman or your conversation with an attorney or doctor enjoys far more legal protections than the most private, heart-to-heart talk you have ever had with the person you may know better and trust more than anyone in the world.

For certain predicaments--legal, ethical, moral--nothing beats the counsel of parents. They've got decades of experience on you, they've got your life in context and, ideally, they have a selfless concern for your best interests.

No matter how badly you've messed up and no matter how big a disappointment you've been to others, your parents more than anyone else will forgive you and still love you. And so even as adults we still turn to them from time to time for advice or even just a wordless surge of understanding and sympathy.

But should we be more careful? The news that special prosecutor Kenneth Starr this week successfully compelled Monica Lewinsky's mother to appear before the grand jury now investigating all things juicy in Washington serves as a reminder to be on guard around Mom and Dad.

U.S. appellate courts have consistently refused to grant a parent-child privilege similar to the limited husband-wife privilege that allows (but does not require) a person to decline to testify about confidential communications with a spouse.

The Supreme Court noted in a 1980 opinion that spousal privilege has its roots in "medieval jurisprudence" in which wives had no separate legal identity from their husbands. But "the modern justification," the court wrote, "is its perceived role in fostering the harmony and sanctity of the marriage relationship . . . home, and family . . . already subject to much erosion in our day."

That this rule does not also extend to close blood ties, as it does in some European countries, is "crazy" in the view of Chicago-Kent College of Law professor Richard Kling.

"I want my child to be able to come to me and share anything in the world," he said. "Neither of us should be fearful in the back of our minds that, if I'm hauled in front of a grand jury, I'll either have to hurt my child or put myself in legal jeopardy."

Such a fear would create an obstacle between a person and a potential source not only of solace but of guidance in how and why to do the right thing. One could argue--as Kling and many legal academics do--that the benefit to society of secure, confidential parent-child relationships is greater than the cost to justice of excluding occasional valuable testimony about such intimate conversations.

"But judges haven't seen it that way," said Northwestern University law professor Ron Allen, a specialist in the rules of evidence. "They've seen all cost and no benefit."

In any given case, he said, the broad benefits of a parent-child privilege are hard to quantify, at best, while the specific cost to prosecutors is obvious.

Which relationships should be sacrosanct? The legal test is "whether the relationship can only be maintained with the promise of confidentiality and whether the value of such relationships outweighs the value of truth determination at trial," Allen said.

"Very few people believe that the lack of legal, parent-child confidentiality is going to cause disruptions between parents and children everywhere."

Probably, though Allen acknowledged that the same line of reasoning would also exclude husband-wife privileges. But if you extend those privileges to parents, then why not to siblings, who are also often confidants, or (a special concern of mine) to former roommates?

"It's a utilitarian question of where you draw the line," Allen said.

I draw the line around Mom. Whose recollections, by the way, for the record, are not to be trusted.

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MORE ON THE INTERNET: Link to court rulings on spousal and parent-child privilege at http://www.chicago.tribune.com/news/columnists/zorn/